Castaneda

Penal Code section 859b provides, among other things, that in setting a preliminary examination, the magistrate “shall allow not less than two days, excluding Sundays and holidays, for the district attorney and the defendant to prepare for the examination.” In this appeal, we hold that (1) the quoted provision is directory only and a failure of strict compliance does not oust the magistrate of fundamental jurisdiction over the cause or the parties; (2) the magistrate substantially complied with the quoted provision and therefore defendant was neither deprived of a substantial right nor illegally committed; and (3) defendant has not satisfied his appellate burden of showing prejudice from a lack of strict compliance with the cited portion of section 859b.

An information charged defendant with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(2)), and alleged that during the commission of the offense he personally used a firearm (Pen. Code, § 12022.5) and inflicted great bodily injury upon the victim. (Pen. Code, § 12022.7; hereafter all references to sections of an unspecified code are to the Penal Code.) Following the denial of his motion to set aside the…